A local town official regularly delineates the sideline of the right of way by using the center line of the traveled way and measures twenty-five feet on either side. in so doing the official ignores long standing fences and does no research into the public record for the layout or the width of the right of way.
There is no statute, rule or regulation regarding the use of the traveled way in establishing the sideline of highway. Surveys have shown that the center of the traveled way does not coincide with the center of the right of way.
Does the town official practice unlicensed land surveying? Is this malfeasance?
Historic boundaries and conservation efforts.
In reality, yes. However, as a public official he is probably covered by some state rule that exempts him.
> Does the town official practice unlicensed land surveying? Is this malfeasance?
Yes, and yes.
Some time back there was a discussion here about a municipal zoning and building inspector (not a professional surveyor) that regularly used a pin finder to locate pins in the execution of his duties. I believe the city that employed him got a cease and desist order from the governing board of registration.
We have an local ordinance that prevents an individual from placing "Vote for Me" signs in public right-of-way. If someone complains a visual determination is made by a constabulary employee. Most likely someone who has simply no idea or concept of locating property lines. I've often thought this was really improper.
Hey...at least the guy you've mentioned is actually measuring something...instead of just eye-balling. This could be seen as negligence in a tort claim against the city if his actions were in error and inflicted any monetary damages to individuals or their property.
This falls into the "What-was-he-really-doing Category".
As an employee, he can go out and make any kind of measurements requested by his superiors that will provide data needed by those superiors for some reason.
As an employee, he most definitely should not be directing the planning of those who own property adjoining said lands held or used by the municipality providing his paycheck. He should not tell an adjoiner where or where not they can safely construct anything. He should not do anything that is clearly limited to those holding professional licenses.
The key difference is: Who will be doing something (or not) based on his measurements?
Shouldn't some distinction be made between determining a line that is lost, uncertain, or not clearly marked on the ground, versus using marks that were placed or confirmed by a surveyor? I don't think a visit by a surveyor is required to make use of existing marks. Even using a pin finder to find the existing mark isn't surveying, if there is no doubt about the location of the pin, to within a few feet, there is only one pin in the area, and the pin finder is just used to avoid tearing up the lawn.
What is the intended level of reliance on the information obtained by the untrained non-surveyor? I've found a 1000 pins that weren't the right one. Bad assumptions can lead to terrible problems.
I've been involved in law suits where a municipality cut down trees they thought were within their right-of-way. Dang trees can get very expensive in a hurry.
I replaced a fence a few years ago and moved it closer to the street by about five feet. The plat where I lived was filed in 1905, prior to Statehood. There is 60' of R/W for the street, but the pavement is not centered. The "center" of the R/W runs along the curb line on the opposite side of the street from my place. I was merely placing the fence on (actually 1' behind) my property line.
My sketch for a permit didn't require any official surveyor's signature so I didn't put one on it. I merely showed where the property line, the old fence and the proposed fence were in relation to each other.
Well...the building inspector (and I use that term loosely) came out to check the fence, after I had put it up. I watched him use a little wheel device to measure from the center of the street over to my fence. He told me I was going to have to move it back, it was on the right-of-way...
I showed him my original permit application (approved) that showed the existing conditions properly. He was adamant that the center of the paving was the center of the R/W. I had foreseen this and had previous conversations with the city survey crew chief (a fairly good friend) about it. He was all too familiar with the 'jog'.
I told the inspector to call so-in-so in Public Works and ask him about it. Apparently he did, I never heard another thing except the permit was "closed", meaning construction was approved.
I makes me wonder how many other folks have, in good faith, tried to satisfy some municipal employee's whim that was totally in error. Scary.
To Paden Cash:
This is exactly my concern and you have defined it with your post. I wonder too how many times the intimidation of this public official and his unauthorized opinion have caused grief. I have no doubt that in any unlicensed practice there is surety that this will occur.
Where I grew up the Municipality had two survey crews whose responsibility was to mark line and grade of the public rights of way among other duties. I guess I have never fully appreciated that fact.
Thank you.
Historic boundaries and conservation efforts.
In my backyard, almost all county road rights-of-way are centered on the section line or an aliquot line. Some veer off due to topographical challenges, then return. There are a few exceptions, however. One is 40 feet one way and only 20 the other resulting in the apparent centerline being five feet off of the section line. A handful are completely off of one side. A couple go completely on one side to a point then jump to be completely on the other side, thus creating a lovely deathtrap jog.
To Holy Cow:
Thank you. In rural areas of my colonial state there is almost never an instance where the center of the traveled way is coincident with the center of the right of way.
If the town continues with the practice of defining it in this way I am sure it will become a psychological fact. In other words; if everyone believed it it must be true.
Litigation is unlikely because of the cost.
Historic boundaries and conservation efforts.
The thing about a municipality is they don't have a town employee walking along each road every week, seeing that the area where a pin is has not been disturbed. In essence, they have no institutional memory about the characteristics of each pin. A homeowner, on the other hand, may have been present when the pins were installed and been close to each pin every week or so since the pins were placed. That homeowner is in a position to rely on the pin without a new survey.